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Rule 93. Certain Pleas to Be Verified (1971)

TEXT

A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit.

(a) That the suit is not commenced in the proper county.

(b) That the plaintiff has not legal capacity to sue, or that the defendant has not legal capacity to be sued.

(c) That the plaintiff is not entitled to recover in the capacity in which he sues, or that the defendant is not liable in the capacity in which he is sued.

(d) That there is another suit pending in this State between the same parties involving the same claim.

(e) That there is a defect of parties, plaintiff or defendant.

(f) A denial of partnership as alleged in any pleading as to any party to the suit.

(g) That any party alleged in any pleading to be a corporation is not incorporated as alleged.

(h) Denial of the execution by himself or by his authority of any instrument in writing, upon which any pleading is founded, in whole or in part, and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed. Where such instrument in writing is charged to have been executed by a person then deceased, the affidavit shall be sufficient if it state that the affiant has reason to believe and does believe that such instrument was not executed by the decedent or by his authority. In the absence of such a sworn plea, the instrument shall be received in evidence as fully proved.

(i) A denial of the genuineness of the indorsement or assignment of a written instrument upon which suit is brought by an indorsee or assignee and in the absence of such a sworn plea, the indorsement or assignment thereof shall be held as fully proved. The denial required by this subdivision of the rule may be made upon information and belief.

(j) That a written instrument upon which a pleading is founded is without consideration, or that the consideration of the same has failed in whole or in part.

(k) That an account which is the foundation of the plaintiff's action, and supported by an affidavit, is not just; and, in such case, the answer shall state that each and every item is not just or true, or that some specified item or items are not just and true.

(l) That a contract sued upon is usurious. Unless such plea is filed, no evidence of usurious interest as a defense shall be received.

(m) That notice and proof of loss or claim for damage has not been given, as alleged. Unless such plea is filed such notice and proof shall be presumed and no evidence to the contrary shall be admitted. A denial of such notice or such proof shall be made specifically and with particularity.

(n) In the trial of any case appealed to the court from the Industrial Accident Board the following, if pleaded, shall be presumed to be true as pleaded and have been done and filed in legal time and manner, unless denied by verified pleadings:

(1) Notice of injury.

(2) Claim for compensation.

(3) Award of the Board.

(4) Notice of intention not to abide by the award of the Board.

(5) Filling of suit to set aside the award.

(6) That the insurance company alleged to have been the carrier of the workmen's compensation insurance at the time of the alleged injury was in fact the carrier thereof.

(7) That there was good cause for not filing claim with the Industrial Accident Board within the six months' period provided by statute.

(8) Wage rate.

A denial of any of the matters set forth in Sections (1) or (7) of this Subdivision (n) may be made on information and belief.

Any such denial may be made in original or amended pleadings; but if in amended pleadings the same must be filed not less than seven days before the case proceeds to trial. In case of such denial the things so denied shall not be presumed to be true, and if essential to the case of the party alleging them, must be proved.

(o) That a party plaintiff or defendant is not doing business under an assumed name or trade name as alleged.

(p) Any other matter required by statute to be pleaded under oath.

Amended by order of July 21, 1970, eff. Jan. 1, 1971: Final clause of subdivision (k) has been changed to harmonize with Rule 185 as amended; Section (8) has been added to subdivision (n).

ADVISORY OPINIONS

(No. 104) Question: Rule 86 of our civil practice provides for filing plea of privilege to be sued in the county of one's residence. What should be the contents of a plea where one is sued for land that is not situated in the county where the suit is brought, e.g. trespass to try title?

Answer: The jurisdiction of the courts and the venue of actions therein were not extended or limited by the adoption of the rules (Rule 816).

Subdivision 14 of the general venue statute (Article 1995) provides that suits for the recovery of lands or damages thereto “must be brought in the county in which the land, or a part thereof, may lie." While this requirement appears to be mandatory, it is settled that this subdivision prescribes the venue in such actions, that it does not relate to jurisdiction and may therefore be waived. South Texas Dev. Co. v. Williams, 130 Tex. 217, 107 S.W.2d 378 (1937).

If a suit in trespass to try title is not commenced in the county where the land or some part thereof lies, the defendant who prefers to try the case in the county where the land lies rather than in the county where the suit is brought may seasonably claim the right to have the case transferred to the county where the land lies. In such event the plea of privilege, sworn to and filed in due time, should allege that it appears from plaintiff's petition, if that be the case, or that, as a matter of fact, the suit is not brought in the county where the land or some part thereof lies as required by subdivision 14 of Article 1995 and that the cause should be transferred to that county. In this sense the statute is mandatory and the cause must be transferred. Rule 93 (a); Shell Petroleum Corp. v. Grays, 122 Tex. 491, 62 S.W.2d 113 (1933); South Texas Dev. Co. v. Williams, 130 Tex. 217, 107 S.W.2d 378 (1937). If, however, the defendant does not file a plea of privilege to be sued in the county where the land lies, answer should be filed within the time required by the rules in the county where the suit is brought and the trial should be there proceeded within due course.

The Supreme Court has held that a plea of privilege under Article 2007, which is substantially the same as Rule 86, is sufficient to cover all cases of personal privilege and all cases of mere venue as provided by the various provisions of Articles 1995 and 2390 relating to venue. Jeffries v. Dunklin, 131 Tex. 289, 115 S.W.2d 391 (1938).

Therefore, if the defendant resides out of the county in which the suit is pending so as to authorize the affidavit of nonresidence, the plea of privilege can follow the exact form outlined by Rule 86, and it will be sufficient to cover subdivision 14 of the Venue Statute without any express allegation concerning the location of the land. But, as hereinabove stated, an alternative form is authorized under the decisions, and the plea can omit allegations as to the defendant's residence and embody in lieu thereof the allegations as to the location of the land and the nature of the suit as above set out. Either form is sufficient under the rule as construed by the decisions.

7 Tex. B.J. 14 (1944) reprinted in 8 Tex. B.J. 38 (1945).